Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Government backs U. Texas on use of race

Posted Mon, August 13th, 2012 4:05 pm by Lyle Denniston

The Obama Administration urged the Supreme Court on Monday to uphold the University of Texas’s use of race in selecting its incoming class of students, arguing that the university needed to add that factor to assure that more minorities are enrolled. It was not enough, the government argued in a new brief, to simply admit the students who finished in the top ten percent of their high school class in the state.

The Court will hold a hearing on the case of Fisher v. University of Texas (docket 11-345) on October 10 — in the second week of its new Term. The case is to be decided by an eight-member Court, since Justice Elena Kagan has taken herself out of the case, presumably because she had some role in it when she was U.S. Solicitor General before joining the Court.

Since the Court last ruled on affirmative action in college admissions, nine years ago in the case of Grutter v. Bollinger, the Court’s membership has changed markedly. Three of the Justices who were in the majority in that 5-4 ruling, and two of the replacements — Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr. — are considerably more skeptical about the use of race in deciding public policy issues. Remaining on the Court from the dissenters in that ruling are Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

Because only eight members of the Court will be taking part in the ruling, there is a chance that the Court might split 4-4. That would have the effect of simply upholding the University’s admissions policy, because it has been upheld by the Fifth Circuit Court. A 4-4 decision would reaffirm that ruling without comment. Thus, if the three Grutter dissenters remain opposed to such policies, they would have to pick up two more votes to overturn the Texas approach.

The University of Texas at Austin, the state’s flagship higher education unit, had abandoned the use of race in its admissions policies after losing an earlier case in lower courts — a decision that the Supreme Court refused to review in 1996. Two years later, the university went to a new approach: giving admission automatically to any Texas student who had finishes in the top ten percent of his or her high school class. If that did not fill the entering class, it then used other non-race indicators.

But right after the Supreme Court’s Grutter decision embracing at least the limited use of race as an admissions factors, the university adopted its own “Grutter plan.” That was first used with the entering class in the fall of 2005. The university still relies heavily on the “top ten” approach, but then it fills any remaining slots in the freshman class by using race as one factor in analyzing individual applicants’ requests for admission. That has produced higher percentages of minority entrants, although the “top ten” plan had been doing quite well in doing that without the use of race. In addition to pursuing “diversity” at the university-wide level, the new addition to the “top ten” plan seeks to do so for individual academic fields of study (“majors”) and even down to the classroom level.

In Monday’s filing by U.S. Solicitor General Donald B. Verrilli, Jr., the Administration gave its unqualified support to the Texas policy as it now exists. It stressed that, under that policy, “race is not considered in isolation or given independent weight.” As written and implemented, the Administration brief contended, the policy fully satisfies the Court’s Grutter ruling, and is, in fact, quite necessary to helping to assure the U.S. military and American business that they will have qualified minorities available for careers.

One of the main points of the challenge to the policy, by a young white woman who was denied admission and blames the policy, is that the university was doing well enough with minority admissions under the racially neutral “top ten” plan, so it had no reason to go back to making race a part of the formula. The challenger, Abigail Noel Fisher, also argued against the use of “diversity” at the major level and at the classroom level.

The Administration brief sought to defend going beyond the “top ten” approach. That plan’s “reliance on class rank to the exclusion of all other attributes made it important to fill the relatively few remaining admissions slots by making nuanced decisions based on a complete contextual understanding of each individual, in order to ensure that the student body contained people who possessed the many attributes valued by the university. And use of the top ten plan had not resulted in a level of minority enrollment that, in the university’s judgment, was sufficient to provide students with a realistic environment that would prepare them to lead a highly diverse workforce.”

What the university aims to achieve, the U.S. brief added, are the educational benefits of “enhanced classroom discussion, decreased racial isolation, a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.”

That is exactly the kind of “complex educational judgment,” the brief said, that the Supreme Court majority had embraced in Grutter.

This system is not one of proportional representation of minorities, the brief asserted.

The federal government’s new filing, in Plain English:

Monday was the deadline at the Supreme Court for groups or individuals seeking to support the University of Texas’s freshman class admissions program, in use at the Austin campus for the past seven years. The Obama Administration, which was not otherwise directly involved in the case, chose to join in support of the Texas approach, arguing that it does not use race as the absolute deciding factor, and is actually used for only a relatively few slots in each entering freshman class. Once the Austin campus has filled the majority of those entering slots, under a previously adopted plan of allowing automatic admission to any student who finished in the top ten percent of a Texas high school class, regardless of race, the government brief contended, the university is entitled to make a limited use of race — individual by individual — in order to assure that its student body, its major disciplines, and its classrooms have enough “diversity” of experiences and backgrounds in order to achieve its educational goal of training future leaders to a multi-cultural workforce.

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]